By Ken Simon, Christian & Small Partner
In some situations, the best option for resolving cases is to assist parties in solving and settling them before going to trial – a process known as mediation. Mediators like me are interested in helping all the parties involved in a case find a solution.
We have a structured negotiation process that involves consulting with the parties and their attorneys in separate, private conference rooms. I go back and forth between the rooms, taking the situation one step at a time to resolve the case.
With many steps involved, where do you start?
It’s helpful to gather all necessary documentation and supply it to opposing counsel. For example, well in advance of a personal injury mediation, Plaintiff’s counsel should provide:
- Medical records
- Medical bills
- Hospital liens
- Medicare/Medicaid liens
- Medicare set asides
- Subrogation liens (property, health insurance providers)
- Wage loss verification
Once everything is gathered, it’s time to start the mediation process. Here are 15 tips:
1. Avoid off-the-record, confusing pre-mediation settlement discussions. Oftentimes, attorneys have differing recollections of the negotiation history, which can lead to mass confusion. Mediators encourage making a fresh start while keeping the negotiation history in mind. Make written settlement demands consistent with informal conversations between counsel. If the plaintiff’s outstanding settlement demands are going to be increased prior to the mediation, provide defense counsel with documentation of, or a rationale for, the increase a sufficient period of time before the mediation to allow any clients or insurers to assess the information and adjust their evaluation.
2. Counsel the client on the mediation process. Explain to your client that information conveyed in the process is confidential and cannot be used against a party. Remember that mediation opening statements are not like trial opening statements, and the willingness to negotiate and compromise is not a sign of weakness.
3. Manage client expectations. Make sure your client understands the strengths and weaknesses of the case, the current litigation environment, the litigation forum, the economic costs of litigating to a conclusion, and the possible settlement range – as well as the difficulty of achieving a settlement at the upper end of that range.
4. Assess all available insurance coverage. Determine whether insurance coverage exists, whether any coverage disputes exist, and identify the coverage limits. Any excess carriers should be put on notice in advance of the mediation and given a chance to participate.
5. Evaluate the case from a detached point of view. Objectively assess the case’s likelihood of success, the range of outcomes, and your client’s worst and best alternatives to a negotiated agreement.
6. Know the case thoroughly. Preparing for mediation is similar to preparing for trial or a hearing on a major motion. The facts must be known “cold,” and legal issues should be carefully vetted.
7. Decide whether you will dispense with opening statements. The trend is against giving opening statements as they tend to do more harm than good. Opening statements carry a great risk of alienating the other side, as they tend to cause the parties to throw stones and sling mud at each other.
8. Make key decisions regarding the exchange of information. Decide what information should be disclosed and whether any should be held back until a more opportune strategic moment.
9. Use the mediator effectively. The mediator should be a sounding board for legal and factual positions, a different set of ears and eyes to evaluate the client’s story, an objective evaluator of the case and its settlement value, and a referee to defuse hostile communications between the parties.
10. Be willing to work through the inevitable impasse. Sometimes “baby steps” are needed, and sometimes “giant steps” are necessary to break through and move forward. “Walk-outs” are rarely successful in fostering a settlement.
11. Redefine “winning.” At trial, “winning” means getting a favorable jury verdict, sometimes on an “all-or-nothing” basis. Closure, however, may be elusive. At mediation, “winning” means getting a settlement that provides value and closure to both sides – not necessarily making the other side lose.
12. Avoid long delays in movement. Maintain an “up-tempo” approach so that momentum develops and continues throughout the negotiation.
13. Avoid last-minute surprises and demands. Make sure material terms are disclosed before the “end game” comes into view. Do not propose unreasonable terms or last-minute demands as closure nears.
14. Avoid “take it or leave it” proposals. Try to remain flexible throughout the negotiating process, yet be firm and fair.
15. Be open to “out of the box” creative thinking. Although most cases are resolved in a conventional manner, occasionally an opportunity for a creative resolution presents itself.
Keep these tips in mind, and remember to avoid becoming too emotionally involved in the negotiation – because, in the end, it’s not about you, it’s about what’s best for your client. Even though you’re an advocate, your client needs objective advice at “crunch time.”